Butler, Tonya D. (2005). Taking the
Shirt
Off Your Back’ and Other Desperate Measures
Used to Ambush the Ambushers in
Sports and Entertainment. MEIEA Journal Vol 5 No 1, 59-74.

Taking the Shirt
Off Your Back’ and Other Desperate Measures
Used to Ambush the Ambushers in
Sports and Entertainment

Tonya D. Butler, University of Memphis

Introduction

Imagine this: while
attending a major sporting event, you are asked to turn inside out or
remove your favorite logo-laden T-shirt. If you refuse, you are asked
to leave the premises. This has already happened in South Africa and
Greece, is about to happen in China and the West Indies, and if
corporate sponsors have their way, spectators might want to bring an
extra set of clothes to their favorite Hollywood film festival.

Ambush Marketing, the
controversial guerilla marketing tactic employed by large and small
companies alike, has become an international conundrum, causing
controversy proportionate to the events where it is practiced. It has
become a global phenomenon that typically rears its, some say, ugly
head at major sporting events worldwide. However, ambush marketing is
not restricted to athletics; a growing number of arts and
entertain-ment-related events have become victims of the creative,
unorthodox, and mostly legal antics of ambush marketers.

In an effort to combat the
problem and punish the perpetrators, sporting event organizers and
governing bodies have chosen to adopt strict, sometimes harsh, and
often drastic measures to protect the substantial financial investments
of their corporate sponsors. The most desperate of these measures
involves venue regulations and ticket restrictions aimed at not only
the various venue partners and rival companies but at spectators.
Whether non-athletic event promoters can, will, or even need to adopt
similar methods to control this practice will depend on the continued
growth of corporate sponsorship in their industries.

Ambush
Marketing

Traditional marketing occurs when a company pays a fee,
often millions of dollars, to become an event’s official sponsor.
Ambush marketing occurs when a competing company, in an effort to
either directly or indirectly associate with the event, or trade off
the good will and reputation of the event, strategically advertises or
places marketing materials at or near the event without having paid a
sponsorship fee. The practice has increased and become so sophisticated
over the years, that it can now be categorized into two types: ambush
marketing by association and ambush marketing by intrusion.

Ambush by Association

Actionable, more traditional
forms of ambush involve infringing upon an event organizer’s exclusive
intellectual property rights. Use of an organization’s or an event’s
trademarked name or logo without permission, website domain name theft,
and the manufacture, sale, or distribution of unlicensed merchandise
are clearly in violation of a host of international, federal, and state
laws, remedied by everything from simple cease and desist letters to
complicated trademark and copyright infringement lawsuits.

Ambush by association
involves an unauthorized affiliation with a sponsored event by a
non-sponsoring business. The affiliation is created by attaching the
non-sponsor’s name, brand, product, or service to the sponsored event
through a wide range of marketing activities. Although many of these
activities do not rise to the level of trademark or copyright
infringement, they may still be illegal or prohibited by statute1 if they
involve any form of fraud, misrepresentation, false advertising,
deceptive trade practices, or passing-off.

The purpose of the unauthorized activity, (unauthorized in
the sense that the association is neither licensed, sanctioned2, or paid
for), is to directly or indirectly establish a connection with the
event, to cleverly tap into the good will, reputation, or status of an
event, or to gain benefit from the exposure and publicity value of an
event.

Some skeptics go so far as
to say that the actual purpose of the ambush is to mislead and deceive
the public into thinking that the intruding company is an official
sponsor of, or contributor to, the event when it is not.3 The skeptics
also maintain that it is the ambushers intent to deprive official
sponsors, suppliers, and partners of much of the commercial value
derived from the “official” designation.4

Ambush by Intrusion

Contemporary
ambush tactics are far more clever, original, outrageous, and for the
most part, legal. They can take many forms, ranging from the
conspicuous (a non-sponsor advertising a product on a building adjacent
to an event venue, perhaps involving some loose reference to the event
or the sport in general) to the more subtle (a non-sponsor giving away
event tickets as prizes in a radio or press competition).5

These ambushers do not necessarily suggest a
link to an event, they simply piggy-back on its spectator and media
exposure.6This includes practices such as causing an airplane towing
an advertisement for a product to fly over a stadium where a sponsored
event is being held; running advertisements making reference to a
sponsored sporting event without suggesting that the advertiser is a
sponsor of the event; running a promotional competition, contest, or
give-away making reference to a sponsored event; and causing a group of
spectators attending a sponsored event to wear clothing that will
attract the attention of television cameras in order to promote a
non-sponsoring product or service, all without suggesting or implying
any form of sponsorship or official connection with the event.7

Every reasonable means has been attempted to
curb the growth and effect of ambush marketing by intrusion.
Unfortunately, these innovative, unorthodox tactics cannot be
adequately combated by traditional legal means because there is
generally no misrepresentation or deception taking place and there is
nothing overtly or otherwise illegal about the ambusher’s activities.
Categorizing the marketer’s conduct as being “wrongful” is much more
difficult.8 Therefore, event promoters are left to employ alternative
methods. They are encouraged to educate the public on the importance of
supporting official sponsors while denouncing the ambushers.9 Event
promoters are also urged to use local littering and peddling laws to
prevent outside-the-venue ambush positioning, to exercise pre-emptive
purchases of surrounding area billboard and advertising space,10 and to
secure right of first refusal of broadcast rights. In addition, event
organizers and the governing bodies that regulate them have been forced
to develop and adopt their own innovative, highly restrictive, and
often heavy-handed regulations to protect the interest and investments
of their multimillion dollar corporate sponsors.

ICC Venue Regulations

The International Cricket Council (ICC) is
the governing body that oversees and regulates the sport of cricket,
its tournaments, championships, and its coveted Cricket World Cup. The
World Cup is one of the largest, most prestigious sporting events in
the world, overshadowed only by the FIFA World Cup of Soccer and the
Olympic Games. In the spring of 2003, South Africa played host to the
Eighth Annual ICC Cricket World Cup. Fifty-four matches were played
between February 9th and March 23rd in at least twelve different venues across
the country. It was announced that “an estimated 1.3 billion viewers
will watch 210 men attempt to prove that they are the best cricketers
in the world.”11

Leagues
participating in the event agreed to a number of sponsorship and
personal endorsement restrictions in exchange for US$550 million for
the commercial rights to ICC events through 2007. The country of South
Africa received tens of millions of dollars to stage the tournament,
including the funding for ground redevelopment, infrastructure, and
additional venues.12

Each of the participating venues, in
exchange for the right to host the tournaments, agreed in advance to
certain restrictions in order to protect the integrity of the event and
the rights of its official commercial partners. The ICC’s website plays
host to their Media Information Service (MIS) where venue regulations
are made available to the media and the public. These rules are also
printed on the back of each spectator’s ticket:

Entry into the venue and demarcated areas
will not be allowed to persons bearing:

[…] placards or other banners or commercial
signs and/or leaflets which refer to or otherwise promote any party and
any objects or clothing containing political or commercial
identification which may be deemed in the discretion of Management to
be “ambush marketing” (ambush marketing is an activity by a party which
utilizes the publicity value of an event without having any official
involvement or connection with the event)

Products including food, beverages,
clothing, posters,etc. with branding of competitors of the official
Event sponsors will not be permitted into the venue. Management
reserves the right to confiscate or replace with product of an
equivalent quality and value any non alcoholic beverages or other
products including branded food and non alcoholic beverage products
which, in its opinion, the importa-

tion of which will or may infringe any
party’s rights or any party’s safety or security.

No person shall engage in any form of
“ambush market-ing” and shall not breach or infringe the rights of any
sponsors, suppliers, broadcasters or other parties commercially
associated with the Match, nor conduct unauthorized promotions or other
commercial activity.13

The effect
that these regulations have on spectators is that the ICC can literally
“take the shirt off your back” if that shirt displays the name or logo
of a non-sponsoring company. Fans who do not comply with the rules run
the risk of having their personal property seized or of being
physically ejected from any World Cup venue.14 Clifford Green, an attorney representing
the interest of the Cricket World Cup’s Anti-Infringement Program
states, “If a fan is wearing a Coca-Cola T-shirt while our official
sponsor is Pepsi, then that item could be confiscated.”15 Spectators
are warned to read and abide by the rules printed on the back of their
tickets. They are urged to avoid a breach of those rules, no matter how
inadvertent or unintentional it may be.

The purpose
of these drastic measures is to protect the interests of Cricket World
Cup’s associated partners and sponsors. The ICC takes its duty to
ensure that its sponsors are not compromised very seriously.16 If a
sponsor’s exclusivity and financial investment are not guaranteed, the
prospect of future sponsorship is severely jeopardized.

The practicality of these measures is a
whole other matter. When asked whether the police department was
suddenly thrust into the T-shirt confiscation business, Superintendent
Charmaine Muller, police spokesperson for the Cricket World Cup, said
that police would do their job to ensure that “law and order was
maintained” in general, but that they would not engage in “tracking
down brand offenders.”17 Therefore, in order to enforce these
regulations, each venue must employ dozens, if not hundreds, of private
security personnel to patrol the stadium in search of unauthorized
placards, banners, and flags as well as food, water bottles, and
T-shirts. Patrons caught with restricted items will be asked to either
conceal them or take them back to their vehicles.18

IOC Clean Venue Policy

In the summer of 2004,
Athens played host to the biggest, most expensive Olympic Games in
history. The $8.5 billion price tag served 11,000 athletes from 202
countries competing in twenty-eight sports. Corporate partners and
sponsorships represented $685 million, over twenty-nine percent of the
organizer’s budget.19

The International Olympic Committee (IOC, the Olympic Games’
governing body) with the cooperation of the Greek government,
instituted what was popularly known as the “Clean Venue Policy.” The
essence of the policy was to ensure the integrity of the games by
creating an environment free of commercial, political, religious, or
ethnic influence and publicity. The result: a ban on direct
advertising. All Olympic venues were advertisement free, including
advertisements from official sponsors regardless of how many millions
of dollars they paid for the privilege.20

Fortunately, the sponsors
were given many other opportunities to promote their brands at the
level of exposure that only the prestige of being associated with the
biggest sporting event in the world can buy. Therefore, the real
ramifications of the policy fell on the stewards, the volunteers, and
the fans. Stewards and volunteers were supplied with uniforms but were
required to purchase their own shoes. They were “urged” not to wear
shoes bearing large, bright logos of any shoe vendor that competed with
the official sponsor Adidas. As for the fans, strict regulations
printed on the back of each ticket dictated that spectators might be
refused admission to events if they carried food or drinks made by any
company that was not an official financial supporter of the games.21

For example, it is common for spectators to bring bottles of
water into outdoor stadiums. Coca-Cola paid more than $60 million to
become one of the event’s primary sponsors, and because Avra Water is a
Greek subsidiary of Coca-Cola, fans were prohibited from carrying any
brand of bottled water other than Avra into the venue. Staff security
was under strict orders not to allow in rival brands of water unless
their labels were removed.22

The restrictions even
extended to a spectator’s clothing. 70,000 private security guards and
45,000 Olympic volunteers were charged with the responsibility of
monitoring not only security threats, but also possible breaches of the
Clean Venue Policy.23 They were hired and trained to spot patrons wearing
merchandise from rival companies hoping to catch the eyes of television
audiences.24 T-shirts, hats, handbags, and any other items displaying the
unwelcome logos of non-sponsoring marketers were subject to inspection.
One exasperated fan with a front-row ticket to an Athens match was
asked at the entrance to turn his shirt inside out because its logo was
so large it would have undoubtedly been picked up by television
cam-eras.25

And just in case the over
100,000 extra security guards didn’t catch you in the act, not to
worry, the ICC’s Brand Protection Office set up an “ambush marketing
incident reporting process,” that official sponsors, employees, and
even patrons could use to instantly and efficiently document any
violations of the Clean Venue Policy:

Obtain transcripts of on-air announcements and radio
commercials, or make a written statement of the infringing
copy.

Get media clips, a videotape or a written statement of
infringing television ads.

Obtain samples of presentation materials used in fund-
raising.

Print hard copies of infringing web pages with date
and
web address.

The rationale behind the restrictions and the
reporting is a result of the intensive television and print media
exposure the games generate. The ICC and its official sponsors must
effectively protect and exploit their rights by working to ensure that
no photographs or panning camera shots reveal non-sponsored products.

Messages On Hold Australia

Messages On Hold
Australia (MOHA) produces tailor-made audio productions for businesses
to play to callers while on hold. They also specialize in ambush
marketing through the strategic placement of their corporate logo at
events that attract media attention.26 Ambush marketing has secured MOHA more than
$500,000 in free advertising and promotion since the company was
founded in 1988 and has even won them recognition (in 1996) as Western
Australia’s fastest growing private company.27

Ambush tactics are more than
just a passing fancy for MOHA; they are the company’s primary marketing
tool. MOHA spends a great deal of time and energy in the design and
implementation of bigger, better, more daring ambush strategies. They
perform extensive research to determine whether an event is likely to
attract media attention and how they can incorporate the company logo
into the media coverage.28 “Pick a celebrity, sports team, politician,
protest march, or any person, team, or event that will attract a throng
of television camera crews and newspaper photographers, then be there
with your logo as large as life. It’s aggressive marketing and involves
bluff and a dash of courage,” says MOHA owner and founder Kym Illman.29

Some of their bold and
clever tactics include a blonde model dressed in a white bikini with
tire tread marks and the MOHA logo painted across her body at a Formula
One racing grand prix event; large white golf um-brellas bearing the
MOHA logo positioned in the sight line of television cameras covering
the action at key golf course holes; giant hands featuring the MOHA
logo positioned behind the goal posts and at key television camera
angle sites at Australian Football League games; and strategically
placed spectators bearing MOHA logo-ladened T-shirts at Wimbledon and
the Olympic Games.30

Although ambush marketing is generally a sporting event
phenomenon, it is by no means restricted to athletics. Companies like
MOHA will target any event that is expected to have a certain
level of media exposure. Opponents of ambush marketing, such as event
sponsors, promoters, and governing bodies, have suggested that
companies like MOHA are the real targets of these stinging venue
regulations and ticket policies. They say that spectators have nothing
to worry about so long as they understand why the regulations are in
place, comply with the printed ticket restrictions, and recognize the
potential seriousness of their failing to do so.

Ambush at Sundance

In 1981 Robert Redford
established the Sundance Institute, dedicated to the support and
development of emerging screenwriters and directors of vision, and to
the national and international exhibition of new, independent dramatic
and documentary films. A nonprofit corporation, Sundance Institute’s
$10.6 million budget is met by thirty-five percent earned income from
ticket sales, fees, and government grants. The remaining sixty-five
percent is comprised of contributed income from corporate and private
sponsorships and donations.31The Institute is responsible for the
Sundance Film Festival, held for ten days each January in Park City,
Utah. One of the premier film festivals in the world, Sundance is a
showcase for the best and latest work of independent American and
international filmmakers. A diverse group of over 36,000 patrons attend
the festival each year, including directors, actors, film industry
executives, and film lovers.32

Like most major,
multiple-day events, the festival attracts a bevy of corporate sponsors
in search of opportunities to showcase their products, services, and
brands. Sundance attracts more sponsors than the Emmys or Oscars. Many
sponsors even use the festival as a client retreat.33

Sundance 2005’s top three official corporate presenters were
Entertainment Weekly, Volkswagen, and Hewlett-Packard. The top three
unofficial ambush marketers were Heineken, Yahoo!, and Mercedes-Benz.34 Ambush
Marketing at Sundance has been occurring since the festival’s
in-ception—but on a much smaller scale. As the event has grown in
popularity (and in revenue generation) the concern over the protection
of sponsors’ rights has increased as well.

Ambush marketing at Sundance
took a slightly different form than it did at the South Africa’s
Cricket World Cup or the Olympic Games in Athens. Yahoo!, Heineken, and
several other non-sponsoring companies converted a three-story shopping
complex into a spa and VIP retreat called “Village at the Lift.” They
also hosted celebrity parties, press events, and gift lounges at other
houses, lodges, and storefronts in the area. These “perimeter” venues
provided food, drinks, internet access, spa services, and live
entertainment—all complimentary to festival attendees.35

Crown Royal, a “Village at the Lift” sponsor for three
consecutive years, said it never heard any complaints from Sundance
organizers. As a matter of fact, complaints seem to be the current
extent of the festival’s anti-ambush campaign. Sundance representatives
claim that the unofficial activities are responsible for the
commercialization of the festival, stealing the limelight from paying
sponsors, creating noise, confusion, and a very chaotic atmosphere,
taking advantage of a nonprofit organization, and distracting from the
festival’s core purpose of showcasing independent films.36

But despite all of the
recent attention and publicity showered on the guerrilla marketing
tactics perpetrated at Sundance, organizers insist they have not yet
experienced the most serious concern associated with ambush marketing:
trouble attracting or keeping official sponsors. According to Elizabeth
Daly, Director of Strategic Development for Sundance, this year’s
sponsorship return rate was seventy to eighty percent. There were
twenty-two sponsors this year, compared to twenty-one in 2004, with
only four new brands on board.37

The Ultimate Price

Ambush marketing has been referred to as
“one of the biggest threats to the future of major sporting events [or
any sponsored event for that matter] because it strikes at the deals
that finance them.”38 Clearly, loss or devaluation of official sponsorship is not
yet an issue for Sundance. Presenting sponsors paid up to $500,000 each
for exclusive presenter and marketing rights. The festival itself
generated upwards of $41 billion dollars in economic activity for the
state of Utah in 2004 with international exposure (including attendees,
print, radio, and television) estimated at 420 million people.39

The numbers are impressive, but minimal
compared to those generated by the 2004 Olympic Games. For example,
Coca-Cola alone paid $40 million for global Olympic sponsorship rights.
They, in addition to other sponsors, also paid millions of dollars to
activate and exploit those rights. Coca-Cola spent an additional $200
million worldwide on advertising, television broadcast rights,
merchandise, an amusement park, and hospitality suites for press, VIP
guests, and athletes. The games generated over $700 million in revenue
and were exposed to an audience of five billion world-wide.40 The
difference in the figures is the difference between how vigorously the
ICC/IOC and The Sundance Institute clamp down on the activities of
ambush marketers.

Supporters
of the Cricket World Cup and the Olympic Games pay almost one hundred
times more in sponsorship fees than do supporters of the Sundance Film
Festival. Sundance ambushers, although a nuisance to official
presenters, might successfully argue that their activities enhance,
support, and contribute positively to the overall success and media
exposure of the event. Major sporting event ambush marketers, who
impose and infringe upon the exclusivity and profit-making potential of
multi-billion dollar companies, would find it difficult to make that
same claim.

Conclusion

Having plagued major international sporting
events for years, ambush marketing has become an undeniably effective
means for getting a message across without paying millions of dollars
in sponsorship fees. However, it’s a practice seen in many circles as
being parasitic, unethical, and immoral as it tends to undermine an
event’s integrity by affecting its ability to attract future sponsors.
In an attempt to promote exclusive sponsorship and to protect the
rights of commercial partners, event organizers and governing bodies
have developed event regulations and lobbied governments for strict
legislation to ensure that unwelcome competitors cannot associate with,
or benefit from, their events nor reduce the benefits and value of
official sponsorship.

Ambush marketing is not limited to sporting
events and film festivals; it is found throughout the entertainment
industry. When an entertainment event reaches a level of international
significance that can attract multiple corporate sponsors at $40-$60
million each, the competitive marketing climate takes on a more serious
tone leading to more desperate mea-sures and fierce legal battles.
Unfortunately, it is the fans and the spectators who get caught in the
cross-fire.

TONYA DENISE BUTLER
Esq., LL.M., Assistant Professor and Area
Coordinator for the University of Memphis – Rudi. E. Scheidt School of
Music, Music Business Program, holds a Juris Doctorate from California
Western School of Law and a Master of Laws in Entertainment and Media
degree from Southwestern University School of Law in Los Angeles. While
in law school, she worked as an assistant in the legal affairs division
of Rhino Records where she supervised the synch and master use licenses
of over one thousand commercials, soundtracks, and compilations. Soon
after leaving Rhino, she took a position in business affairs at The
Hyper Group, Inc., a Japanese-owned record label and publishing company
specializing in Euro-pop, World Music, and independent film
soundtracks. Butler later opened her own consulting firm, focusing on
business affairs, promotions, marketing, and distribution consulting
for independent record labels and production companies, which led to
her position as Manager of Promotions and Marketing for Pioneer
Entertainment, where she designed and implemented marketing strategies
for artists including CeCe Winans, Kirk Whalum, Oleta Adams, Peter
Frampton, and Ray Charles. Her most recent industry position at MGM
Music involved music chain-of-title research and contract review for
the MGM-owned television series She Spies and Thirty-Something
as well as several MGM films including Legally Blonde II, Barbershop,
Walking Tall, and Die Another Day.

Professor Butler is a
long-time member of the American Bar Association’s Entertainment and
Sports Law Forum, the Black Entertainment and Sports Lawyers
Association (BESLA), and the National Association of Black Female
Executives in Music and Entertainment (NABFEME). She is as an executive
board member of the Music and Entertainment Industry Educators
Association (MEIEA) and sits on the National Academy of Recording Arts
and Sciences (NARAS), Memphis Chapter, Board of Governors. Butler
joined the University of Memphis faculty in the fall of 2004 after
spending the summer studying international entertainment, media, and
sports law at Fitzwilliam University in Cambridge, England. Her
academic responsibilities at the University of Memphis include
instruction in all aspects of music business including entertainment
law, copyright, record contracts, music publishing, artist management,
concert promotion, record company operations, and entrepreneurship. She
serves as founder and faculty advisor to the University of Memphis
chapter of the Music and Entertainment Industry Students Association
(MEISA) and the student-run record label BlueTrip Records.